Judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law impartially according to its original meaning. As such, activism does not mean the mere act of striking down a law.
In an 8-0 opinion delivered by Justice O’Connor, the Supreme Court upheld the constitutionality of the Hawaii Land Reform Act of 1967, a statute which permitted the state to redistribute land by condemning and acquiring private property from landlords in order to sell it to another private owner, in this case, their tenants. The Court reasoned that the Act’s method of redistributing the title of real property of privately owned land did not violate the “public use” requirement of the Fifth Amendment’s “Takings Clause” because the “exercise of the eminent domain power is rationally related to a conceivable public purpose” and, the fact that the property taken by the state was to be transferred to private owners “does not condemn that taking as having only a private purpose.”
The Court’s decision is activist because it abuses precedent and contorts the text of the Takings Clause to include taking of real property in the regulation of oligopoly, thereby nullifying, at least in part, the right to property guaranteed by the Takings Clause. The Takings Clause in the Fifth Amendment was enacted to prevent the government from infringing on the private property rights of citizens, a right which was fundamental to the American Founding. Thus the words “public use” limited the government’s power to the taking of private property only when the land desired would be used by the general public. Roads, schools, or libraries would be permissible public uses for takings under this original understanding. The Court abused precedent, reinforcing grave errors by extending the misinterpretation of “public use” as being the equivalent of “public purpose,” which not only displaces the language of the Clause, but invites limitless infringement on one of our most fundamental rights.
This case serves as a precursor to Kelo v. City of New London, in which private property was taken from homeowners and given to private businesses, under the theory that economic development constituted an adequate public purpose.
Court & Reporter NumberSupreme Court, 467 U.S. 229
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